Citation Nr: 1513393 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 10-38 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for the cause of the decedent's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The decedent served on various periods of active duty for training (ACDUTRA) with the Army National Guard from January 1959 to January 1965. He died in May 1998. The appellant seeks surviving spouse benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. FINDINGS OF FACT 1. During the decedent's lifetime, service connection was not in effect for any disability. 2. The decedent's death certificate indicates that the immediate cause of death was amyotrophic lateral sclerosis (ALS). 3. The decedent only had ACDUTRA service in the Army National Guard; he did not serve on active duty and did not incur any disease or injury during ACDUTRA. 4. ALS was not incurred in or aggravated by any period of ACDUTRA. CONCLUSIONS OF LAW 1. The decedent did not have active military, naval, or air service, and therefore the presumption of service connection for ALS does not apply. 38 U.S.C.A. §§ 101(24), 1131 (West 2014); 38 C.F.R. § 3. 318(a) (2014); Bowers v. Shinseki, 26 Vet. App. 201 (2014). 2. The criteria are not met for entitlement to service connection for the cause of the decedent's death. 38 U.S.C.A. §§ 101(22), (24), 1133, 1310 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.312, 3. 318 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to provide notification with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b)(2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In cases specifically involving claims for Dependency and Indemnity Compensation (DIC) benefits, including for service connection for the cause of death, notice must include: (1) a statement of the conditions, if any, for which the decedent was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate the DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate the DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was advised of VA's duties to notify and assist in the development of the claim in a March 2010 decision letter. The Board notes the RO did not expressly inform the appellant that the decedent was not service connected for any disability at the time of his death. However, because of their 38 years of marriage, the Board finds the appellant had actual knowledge that the decedent was not service-connected for ALS or any other disability at the time of his death. Moreover, the claims file shows that the appellant and representative had actual knowledge of the information and evidence necessary to substantiate the claim, evidence that the decedent had active duty service, and the appellant submitted evidence specifically addressing that issue. The Board finds that the appellant had a meaningful opportunity to participate effectively in the adjudication of her claim, and the Board therefore concludes that any notice deficiency by VA was not prejudicial to the appellant. Resolution of this appeal turns on an issue regarding the status of the decedent and appellant as a claimant under the law and not on the underlying facts or development of the facts. The duties to assist and notify can have no effect on appeals that are decided on an interpretation of the law, as opposed to a determination based on fact. Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The appellant has received all essential notice, has had a meaningful opportunity to participate effectively in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). As a result, there is no reasonable possibility that further development would result in substantiation of the appellant's claim. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to an appellant are to be avoided); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service in the line of duty. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Service connection will also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d) (2014). To establish entitlement to service connection for the cause of the decedent's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2014). The service-connected disability will be considered as the principal cause of death when that disability, singly or jointly with another condition, was the immediate underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2014). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1) (2014). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c)(1) (2014). During the decedent's lifetime, service connection was not established for any disability. His death certificate shows that he died in May 1998 and that the immediate cause of death was ALS. In this case, there is no question as to whether ALS substantially or materially aided or lent assistance to the production of death. The death certificate demonstrates that ALS caused the decedent's death, and there is no lay or medical evidence to the contrary. In regard to the representative's assertions as to an in-service onset of ALS, the Board finds that there is no evidence of record, competent or otherwise, to support those general statements. Moreover, the appellant does not assert that service connection for cause of the decedent's death be granted on a direct basis, as the available service treatment records show no complaints, and the appellant does not allege that the decedent's ALS began during his service. Instead, the appellant argues that entitlement to cause of death be granted on a presumptive basis under the provisions set forth in 38 C.F.R. § 3.318. The development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for ALS. 38 C.F.R. § 3. 318(a) (2014). Service connection will not be established if the claimant did not have active, continuous service of 90 days or more. 38 C.F.R. § 3. 318(b)(3) (2014). The issue upon which this matter turns is whether the decedent had "active military, naval, or air service" under the law. 38 U.S.C.A. § 101(2) (West 2014); 38 C.F.R. § 3.1(d) (2014). For VA purposes, a Veteran is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." "Active military, naval, or air service" includes active duty and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury, though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2014); 38 C.F.R. § 3.6(a) (2014). Without "active military, naval, or air service," the decedent is not a Veteran for VA compensation purposes, and the presumption of ALS does not apply. Bowers v. Shinseki, 26 Vet. App. 201 (2013). Because the evidence does not show that the decedent was disabled or died from any disease or injury during any period of ACDUTRA, and does not show that he was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during INACDUTRA, the decedent did not have active military, naval, or air service. The record includes a certificate of service that shows that the decedent was a member of the Army National Guard from March 1959 to September 1959 with service terminated by honorable release from active duty for training and no active service other than for training purposes. In February 2011, the RO submitted a request for verification of the decedent's service from January 1959 to January 1962 and a reenlistment period from January 1962. In June 2011, the RO received a response indicating that the decedent had "performed no active duty other than for training purposes." In addition, a separation form from the Army National Guard shows service from January 1959 to January 1965, but does not show that any active military, naval, or air service was performed. Presumptive service connection does not apply to claims predicated on ACDUTRA and INACDUTRA service, but only for active duty. Biggins v. Derwinski, 1 Vet. App. 474 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22) (West 2014); 38 C.F.R. § 3.6(c) (2014). That usually includes a two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23) (West 2014); 38 C.F.R. § 3.6(d) (2014). That usually indicates weekend drills or training. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States and at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, or must have performed full-time duty under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. 10 U.S.C. § 12401 (West 2014). The Board affords significant probative weight to the official response that the decedent has no active service. Therefore, the decedent's service is not considered active military, naval, or air service as defined by statute because it was not active duty. Without "active military, naval, or air service," the deceased is not a "decedent" for VA compensation purposes, and the presumption or service connection for ALS does not apply. Bowers v. Shinseki, 26 Vet. App. 201 (2013). The Board has considered the various arguments set forth by the appellant's representative that the decedent's ACDUTRA service is included within the definition of "active military, naval, or air service." The representative also asserted that, since the decedent served on 90 days of continuous service, he should therefore qualify for the presumption of ALS. Unfortunately, these arguments are not in accordance with the law, which requires active military, naval, or air service for the presumption of ALS to apply. The 90 day period referenced by the representative is only contained within an exception that, after it is determined that the claimant had active military, naval, or air service to possibly qualify for the presumption, the presumption is excluded for those that did not have 90 days of continuous active service. 38 C.F.R. § 3. 318 (2014); Bowers v. Shinseki, 26 Vet. App. 207 (2013). Furthermore, the law is clear that ACDUTRA qualifies as "active military, naval, or air service" only when a claimant dies or becomes disabled from a disease or injury incurred or aggravated in the line of duty. There is no competent evidence that the decedent became disabled or died from any disease or injury incurred during ACDUTRA, and the appellant does not allege that. Thus, the provisions of 38 C.F.R. § 3. 318 do not apply in this case. Accordingly, the Board finds that this claim for service connection for the cause of the decedent's death must be denied. The decedent did not have active military, naval, or air service, the law forbids application of the presumption of service connection for ALS. The evidence does not otherwise show that any disease or injury incurred in ACDUTRA or injury or specified disease occurred during INACDUTRA and caused or contributed to the decedent's death. Therefore, the preponderance of the evidence is against the claim and the service connection for the cause of the decedent's death must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for the cause of the decedent's death is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs